Temporary Restraining Order or Preliminary Injunction

A lawsuit normally takes about two years to be resolved from the time it is initially filed with the court until the judge or jury gives a final verdict. However, there are times where a party cannot wait for two years for the situation to be resolved because the party is experiencing immediate and ongoing harm—the continuing damage for the next two years while the party waits for the trial to occur may shut down the company owned by the party.

In situations like this where one party may suffer irreversible damage while the case slowly proceeds through litigation, the party can request a temporary restraining order (TRO) or preliminary injunction to stop the other side from causing harm while waiting for a resolution. The TRO and preliminary injunction are mechanisms that allow business owners to get the help and relief they need immediately, rather than waiting for the final verdict. A TRO is typically issued in circumstances where immediate action is necessary and sometimes even before the other party has a chance to respond. A preliminary injunction is issued after a hearing, similar to a mini-trial, where both parties argue the merits of the injunction.

TROs and preliminary injunctions basically condense the two year trial process into one month, and a judge will analyze the facts presented and decide if one party should be forced to refrain from specific actions until a final verdict is given on the case. The burden to obtain a TRO or preliminary injunction is quite high; judges do not approve them lightly and certainly will not do so just because it is asked for. However, when one is granted, it can be a sign of how the court will rule in its final decision and provide huge benefits leading up to the decision.

A common circumstance where a party may request a TRO or preliminary injunction includes the situation where a competitor steals confidential and proprietary information from a rival business and uses that information to steal clients and start a competing business. Without a TRO or preliminary injunction in place, the thieving business can continue to use that information and steal clients and potentially put the competitor out of business, or at least continue causing great harm, during the two years it takes to get to a trial. In such a situation, the business cannot wait two years to stop the theft of clients. It needs relief immediately. Thus, a judge may grant a TRO or preliminary injunction to stop the business from using the information and stealing clients.

Obtaining a TRO or preliminary injunction is a complex process because of the specific procedural rules that must be followed to obtain one, and they are not easy to obtain because of the high burden of proof placed on the person seeking the injunction. Judges do not grant the injunctions lightly. It is a very fact intensive hearing based on the evidence both parties can submit. The experienced Arizona business attorneys at Denton Peterson, P.C. can help you navigate the procedures to help you obtain or defend yourself from a TRO or preliminary injunction.

There are three main elements that a judge will consider when determining whether or not to grant a TRO:

1) There is no other remedy adequate for the situation and the harm suffered is truly irreparable. The party seeking the TRO/preliminary injunction must establish that the damage it will sustain is something that cannot simply be paid for with money. A judge will consider how likely it is that the alleged injuries will occur. Also, the judge will look at the type of harm and determine if it is actually irreparable. Even if the injuries are likely to occur, if they can simply be fixed with money damages, a judge may decide that a TRO or preliminary injunction is not warranted. In our example above, where one company is stealing confidential information and business clients, the judge is likely to determine that the clients and confidential information cannot be replaced with money. If, on the other hand, the business competitor stole office furniture and materials, the court is likely to determine that those damages can likely be fixed (or rectified) through money damages—i.e., the value of the office furniture (assuming the office furniture is not unique and specifically required to run the business for the next two years).

2) You must be substantially likely to win the case. A judge will not grant a TRO or preliminary injunction unless he believes the side seeking the injunction is likely to win the case. No judge will require the outcome to be certain, but he must see a serious lawsuit. If the case looks frivolous, the judge will never grant an injunction. Some judges may require a case to be more certain than others. It is very important that you hire a lawyer who can gather evidence quickly and is experienced with the procedures, because the process moves so much faster than a trial. You need a skilled attorney who will lay out the facts in convincing fashion to persuade the judge you are likely to win the case.

3) The benefit to the party seeking a TRO should be greater than the burden of the other party. A judge will essentially weigh the harm posed to the party seeking the injunction against the harm the injunction may cause the party it is placed on. For example, if the party seeking an injunction will go out of business without the injunction, and the other party will have less customers because it can no longer use allegedly stolen information, this factor would probably weigh in favor of the party seeking the injunction.

At Denton Peterson, P.C. we have also represented clients who have been sued and had to defend themselves from a TRO or preliminary injunction. The process is basically the same, but in reverse. You have to gather your evidence quickly and argue that (1) the damage is not irreparable or that it can be remedied through money damages; (2) the other side is not substantially likely to win the case; and, (3) the injunction will hurt you more than it will help the other side who is asking for it. You do not have the burden of proof, so if you cast enough doubt on the three elements, the judge is not likely to grant the injunction.

TROs and preliminary injunctions are powerful tools that can have dramatic consequences for the parties involved. There are also many tactical reasons to apply for TROs or preliminary injunctions that go beyond getting the order and look to the final outcome of the lawsuit. Filing for an injunction can force the other side to give up much of its evidence or admit fault in certain areas. Anyone who is seeking an injunction or defending against one should hire a litigation lawyer who is experienced with the intricacies and specific procedures of TROs and preliminary injunctions.

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